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same, and, if he consider it necessary, after hearing Parties, allow a Proof to them of their respective Averments, which Proof he shall take himself, and either write the Evidence with his own hand, in which Case it shall be read over to the Witness by the Judge, and signed by the Witness, if he can write, or the Lord Ordinary shall record the Evidence by dictating it to a Clerk, in which Case it shall, when taken down, be read over and signed as above; or the Lord Ordinary shall cause the Evidence to be taken down and recorded by a Writer, skilled in Shorthand Writing, in manner after mentioned, and it shall be competent to the Lord Ordinary, in special Cause shown, instead of taking such Proof, to grant a Commission to take said Proof elsewhere than in Edinburgh, in which Case he may pronounce an Interlocutor setting forth such special Cause, and granting Commission to take such Proof, and if satisfied after Proof of the Fact of such Desertion, and that the same was without reasonable Cause, he shall pronounce an Interlocutor giving to the Wife Protection as aforesaid, and he shall appoint Intimation of the said Interlocutor having been pronounced to be made in One or more Newspapers published within the County within which the Wife is resident, or in such other Newspapers as the Lord Ordinary may appoint.

1 Supra, § 61 et seqq. Act, 1881, § 5, post p. 200.

2 Supra, § 62.

Cf. The Married Women's Property (Scotland)

And by the Act of 1874, to the Sheriff: post p. 187.

Property includes and applies "to all property falling under the jus

mariti."

See the interpretation clause, sec. 19 of the Act.

5 Supra, § 62.

Creditor may

apply by Petition for

Recal of Order.

2. It shall be lawful for the Husband, or any Creditor or other Per- Husband or son claiming in or through his Right, if such Creditor, Husband, or other Person have not lodged Answers as aforesaid, to apply by Petition to the Lord Ordinary by whom such Order was made for the Recal thereof; and the Lord Ordinary shall appoint such Petition to be answered by the Wife, and thereafter dispose of the Application as he shall think just; but such Recal shall not affect any Right or Interest onerously and bona fide acquired by any Third Party from the Wife before said Recal; and the Lord Ordinary shall direct that Publication of his Interlocutor be made in manner herein-before provided.

may be

3. All Interlocutors of the said Lord Ordinary may be brought Interlocutors under Review of either Division of the Court of Session, by lodging reviewed. and boxing within Twenty-one Days after the pronouncing of such How long Interlocutors, if in Session; and if the said Twenty-one Days shall ex- Protection pire during Vacation, by lodging in the Bill Chamber a Reclaiming

Order of

to continue operative.

Note and boxing the same at the First Box Day after the Expiry of the said Twenty-one Days: Provided always, that, notwithstanding such Reclaiming Note, the Interlocutor of the Lord Ordinary granting Protection shall take effect when intimated as aforesaid, unless the Lord Ordinary, either at the Time of the pronouncing thereof or within Forty-eight Hours thereafter, order that his Interlocutor shall not take effect till the advising of the Reclaiming Note, or such other Period as he may think fit; and such Order of Protection shall, where there has been Appearance by the Husband, continue operative until such time as the Wife shall again cohabit with her Husband, or until the Lord Ordinary, upon a Petition by the Husband, shall be satisfied that he has ceased from his Desertion, and cohabits with his Wife; and the Lord Ordinary may require him to find Security for such Period as may be appointed, that he shall continue to cohabit with her; and upon the Lord Ordinary being so satisfied, and Security found, if reNo Action of quired, he shall recal the Order of Protection; but such Recal shall not affect any Right or Interest acquired by the Wife while the said Order subsisted, which Right and Interest shall remain vested in her, exclusive of her Husband's Jus mariti and Right of Administration ;1 nor shall it affect any Right or Interest acquired by a Third Party during such Period, or any Third Party through or from her, while the said Order subsisted; and until such Order be recalled it shall not be competent for the Husband to institute an Action of Adherence against his Wife; and the Lord Ordinary shall direct that Publication of its Recal be made in manner herein-before provided.

Adherence competent while Order subsists.

After Interlocutor of

to her as if

unmarried.

This is a much larger protection than is accorded by the Married Women's Property (Scotland) Act, 1881, as under it the husband's right of administration remains intact. Supra, §§ 71, 90, 101, 106.

4. After an Interlocutor of Protection is pronounced, and duly intimated, the property of the Wife as aforesaid shall belong to her as Protection is pronounced, if she were unmarried: Provided always, that such Protection shall Property of Wife to belong not extend to Property acquired by the Wife of which the Husband or his Assignee or Disponee has before the Date of presenting said Petition obtained full and complete lawful Possession,1 nor shall such Protection affect the Right of any Creditor of the Husband over Property which he has before the Date thereof duly attached by Arrestment, followed by a Decree of Forthcoming, or which such Creditor has before the said Date duly poinded, and of which he has carried through and reported a Sale.

Order of

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5. If any such Order of Protection be made and intimated, it shall Protection to have the Effect of a Decree of Separation a mensa et thoro in regard to

have effect of

Separation.

the Property, Rights, and Obligations of the Husband and of the Wife, Decree of and in regard to the Wife's Capacity to sue and be sued.

Separation

the Jus mariti

and Right of

Administration;

6. 1After a Decree of Separation a mensa et thoro obtained at the in- In case of stance of the Wife, all Property which she may acquire, or which may the Property come to or devolve2 upon her, shall be held and considered as of the Wife to belong to her property belonging to her in reference to which the Jus mariti exclusively of and Husband's Right of Administration are excluded, and such Property may be disposed of 3 by her in all respects as if she were unmarried, and on her Decease the same shall, in case she shall die intestate, pass to her Heirs and Representatives, in like Manner as if her Husband had been then dead; provided that if any such Wife should again cohabit with her Husband all such Property as she may be entitled to when such Cohabitation shall take place shall be held to her separate Use, and the Jus mariti and Right of Administration of her Husband shall be excluded in reference thereto, subject, however, to any Agreement in Writing made between herself and her Husband; and the Wife shall, while so separate, be capable of entering into Obli- also for Purgations, and be liable for Wrongs and Injuries, and be capable of suing tract and and being sued, as if she were not married; and her Husband shall suing. not be liable in respect of any Obligation or Contract she may have entered into, or for any wrongful Act or Omission by her, or for any Costs she may incur as Pursuer or Defender of any Action, after the Date of such Decree of Separation and during the Subsistence thereof; provided that where upon any such Separation Aliment has been decreed or ordered to be paid to the Wife and the same shall not be duly paid by the Husband, he shall be liable for Necessaries supplied for her Use.

poses of Con

1 Corresponds with § 25 of the English Act, 20 and 21 Vict. c. 85. As to the effect of the clause upon marriage settlements, see In re Insole, L. R. 1 Eq. 470; In re Coward and Adams Purchase, L. R. 20 Eq. 179; Dawes v. Creyke, L. R. 30 Ch. D. 500; Waite v. Morland, L. R. 38 Ch. D. 135.

If a married woman after obtaining decree of separation succeeds to property, it will not pass to the trustees of her marriage settlement under a general assignation of acquirenda. Dawes v. Creyke, supra, and the comments on this case in Waite v. Morland, supra. Whether a married woman after judicial separation is entitled to obtain a conveyance to property bequeathed to her subsequently thereto, freed from restraints applicable to a married woman, is not settled. See Waite v. Morland, supra. 2I.e., pass by succession by law or by will. Parr v. Parr, 1 My and K. 648; Earl of Zetland v. Lord Advocate, L. R. 3 App. Ca. 505.

Property coming to a married woman does not devolve upon her after the decree, if the succession has opened prior thereto, even although it has not been reduced into possession by the husband. Johnson v. Lauder, L. R. 7 Eq. 228.

Terce claim-
able from
Burgage
Property.

When a married Woman succeeds to

same.

3 As to these words, see per Romilly, M. R., In re Insole, L. R. 1 Eq. 470.

The English technical expression for property held exclusive of a husband's marital rights. See supra, pp. 54, 82; infra, p. 194 note 7, p. 196 note 3.

12. The Widow of any Person who shall, after the passing of this Act, die infeft in Property held by Burgage Tenure shall be entitled to Terce therefrom and the like Proceedings as to Service and Kenning before the Sheriff shall be competent in such a Case as are competent with reference to Property in respect of which Terce might have been claimed prior to the passing of this Act.1

1 Supra, § 69.

16. When a married Woman succeeds to Property, or acquires Right to it by Donation, Bequest, or any other Means than by the Exercise Property, etc., Husband or of her own Industry,1 the Husband or his Creditors, or any other PerCreditor not son claiming under or through him, shall not be entitled to claim the entitled to claim the same as falling within the Communio bonorum, or under the Jus mariti or Husband's Right of Administration,2 except on the Condition of making therefromr a reasonable Provision for the Support and Maintenance of the Wife, if a Claim therefor be made on her Behalf; and in the event of Dispute as to the Amount of the Provision to be made, the Matter shall, in an ordinary Action, be determined by the Court of Session 3 according to the Circumstances of each Case, and with reference to any Provisions previously secured in favour of the Wife, and any other Property belonging to her exempt from the Jus mariti: Provided always, that no Claim for such Provision shall be competent to the Wife if before it be made by her the Husband or his Assignee or Disponee shall have obtained complete and lawful Possession of the Property, or, in the Case of a Creditor of the Husband, where he has before such Claim is made by the Wife attached the Property by Decree of Adjudication or Arrestment, and followed up the said Arrestment by obtaining thereon Decree of Furthcoming, or has poinded and carried through and reported a Sale thereof.

Court of Session empowered to

1 Supra, §§ 66, 67, 68.

2 But the statute does not apply if the husband takes in virtue of a contract of marriage or other pactional arrangement. Fraser, Husband and Wife, i. p. 835.

3 The Sheriff's jurisdiction is not extended to this by the Act of 1874.

17. The Court of Session are hereby authorized and empowered to make from Time to Time such Orders and Regulations as to Forms of make Acts of Process by Acts of Sederunt as they may consider necessary for carry

Sederunt.

ing into execution the Purposes of this Act.

Laws incon

18. All Laws, Statutes, and Usages are hereby repealed in so far as Repeal of the same are inconsistent with the Provisions of this Act, but no sistent with further or otherwise.

this Act.

of Terms.

19. The following Words and Expressions, when used in this Act, Interpretation shall, in the Construction thereof, be interpreted as follows, except where the Nature of the Provision or the Context of the Act shall exclude or be repugnant to such Construction; that is to say, the Expression "Lord Ordinary" shall include his Successor; the Word "Property" shall include and apply to all Property falling under the Jus mariti; the Expression "Consistorial Action" shall include Actions of Declarator of Marriage, of Declarator of Nullity of Marriage, of Declarator of Legitimacy and Bastardy, Actions of Separation a mensa et thoro, of Divorce and of Adherence, and of putting to Silence, and Actions of Aliment between Husband and Wife instituted in the Court of Session.

20. This Act may in all Proceedings be cited as "The Conjugal Short Title. Rights (Scotland) Amendment Act, 1861."

21. This Act shall come into operation on the First Day of November Commencenow next ensuing, and not before.

ment of Act

No. VI.

37 and 38 VICTORIA, c. 31.1

An Act to amend the Conjugal Rights (Scotland) Amendment Act, 1861.

[16th July, 1874.]

c. 86.

Whereas an Act was passed in the twenty-fourth and twenty-fifth 24 & 25 Vict. years of the reign of Her present Majesty, intituled "An Act to "amend the Law regarding Conjugal Rights in Scotland":

And whereas the expense of procedure under that Act prevents many persons from availing themselves of its benefits, and it is desirable to amend the same :

Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same.

1. The word "sheriff" shall include sheriff-substitute.

Supra, § 62; Wilson, Practice of the Sheriff Courts, p. 394 et seqq. (3rd ed. 1883).

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